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United States v. Rezapour

United States District Court, W.D. Washington, Seattle

November 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BABAK REZAPOUR, Defendant.

          ORDER ON GOVERNMENT'S EVIDENTIARY MOTIONS

          Robert S. Lasnik, United States District Judge

         This matter comes before the Court on the government's “Motion to Admit Evidence of Defendant's Prior Sexual Assault Under Rules 413 and 404(b)” (Dkt. #52) and “Motion in Limine to Preclude Evidence or Argument Concerning Penalties or Collateral Consequences of Conviction” (Dkt. #74).

         I. MOTION TO ADMIT EVIDENCE OF PRIOR SEXUAL ASSAULT

         The government asks the Court to admit evidence of an uncharged 2017 sexual assault allegation against defendant pursuant to Federal Rules of Evidence 413 and 404(b). See Dkt #52.

         a. Background

         It is uncontested that defendant was a guest at the Grandover Resort in Greensboro, North Carolina on July 23, 2017, at the time of the allegation. From there, the parties' accounts of the incident at issue diverge.

         From the government's perspective, a hotel housekeeper (referred to as “L.S”) reported that defendant sexually assaulted her late one evening as she cleaned the men's locker room at the Resort. Dkt. #52 at 2. According to L.S., defendant first asked her to come to his hotel room and provided her with his room number. Id She states that she refused, but defendant followed her into the locker room, approached her, brushed up against her buttocks and pressed his groin against her, at which point she felt his erection. Id. at 2-3. When L.S. tried to get away, defendant allegedly grabbed her arms, but she was able to “br[eak] free from his grasp and call[] security.” Id. at 3. A security officer responded to the call and reviewed security footage, which allegedly showed the defendant entering the men's locker room. Id. Defendant initially denied that he was near the locker room, but when the security guard showed him the footage, he allegedly corrected himself while still denying the sexual assault. Id. Hotel security called the Greensboro Police Department, which asked defendant to leave the hotel. Id. Defendant allegedly refused to leave and locked his hotel room door. Id. Security bypassed the lock and defendant was escorted from the premises and permanently banned. Id. L.S. never pressed charges. Id.

         Defendant presents a different account of the 2017 incident. He states that he was at the Grandover Resort on a business conference when he took Tramadol, a prescription painkiller he used for severe stomach pain. Dkt. #56 at 2 (citing Dkt. #56-1). Defendant says he later attended a company event and consumed several beers, “which interacted with the Tramadol and left him feeling ‘very, very dizzy,' ‘completely [un]aware of what [was] going on,' and ultimately led to [him] passing out without much recollection of the events that evening.” Id. (citing Dkt. #56-1 at 5-7). He alleges that he was very inebriated when he saw a “lady” at the hotel and grabbed her to ask her to take him to his room. Id. at 3 (quoting Dkt. #56-1 at 5-6). Defendant said that she seemed scared, and he thinks he might have been speaking in Farsi and “wasn't completely aware” of what was going on. Id. From there, he alleges that L.S. ran away and it took him awhile to get to his room, where he fell asleep. Id. Because he was asleep, he didn't open the door when security came. Id. Defendant emphasizes the contemporaneous incident report, which contains no “allegation of sexual assault.” Id. He also describes an interview of the responding security officer, who thought defendant seemed intoxicated because he smelled of alcohol and was staggering slightly.” Id at 4. Finally, he asserts that law enforcement's summary of L.S.'s interview is misleading because (1) during the interview, she repeatedly stated that defendant “brushed up against her” but never described pushing, thrusting, or intentionally forceful contact, (2) the summary omits L.S.'s statements implying defendant never had a tight grip on her arms, (3) the summary minimizes L.S.'s statements regarding her perception of defendant's level of intoxication, and (4) the summary omits L.S.'s three statements indicating that defendant did not hurt her. Id at 4-6.

         b. Admissibility Under Rule 413

         Federal Rule of Evidence (“Rule”) 413 governs the admission of evidence of similar crimes in cases involving sexual assault. See Fed.R.Evid. 413. In relevant part, the Rule provides, “[i]n a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault.” Fed.R.Evid. 413(a). Under the Rule, sexual assault includes “a crime under federal law or state law” that involves “contact, without consent, between any part of the defendant's body - or an object - and another person's genitals or anus” or “contact, without consent, between the defendant's genitals or anus and any part of another person's body.” Fed.R.Evid. 413(d). Rule 413 provides an exception to the general ban on propensity evidence, allowing courts to admit evidence of other sexual assaults committed by a defendant to prove his propensity to commit the charged sexual assault. See United States v. LeMay, 260 F.3d 1018, 1025-27 (9th Cir. 2001).[1]

         In evaluating the admissibility of the proffered evidence, the Court is mindful that Rule 413 “is not a blank check entitling the government to introduce whatever evidence it wishes, no matter how minimally relevant and potentially devastating to the defendant.” LeMay, 260 F.3d at 1022. First, pursuant to Rule 413, the proffered evidence is admissible only if (1) the defendant is accused of an offense of sexual assault, (2) the proffered evidence relates to the commission of another offense of sexual assault, and (3) the proffered evidence is relevant. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000) (citation omitted). Here, defendant is accused of an offense of sexual assault, namely, of sexually assaulting a fellow passenger on a commercial airplane. Therefore, the Court need only examine the second and third Glanzer factors.

         i. Relevance

         The Court first assesses whether evidence of the 2017 allegation is relevant.[2] The government argues that the proffered evidence is relevant to show that defendant (1) “derives sexual gratification from attacking strangers”; (2) “is a bold offender, attacking his victims in public spaces”; (3) has “a preference for the victims' gender, both of which were women”; (4) has a “propensity to commit sexual assaults away from his home, while on travel”; and (5) “‘lacks the moral inhibitions' that would prevent him from committing sexual misconduct.” Dkt. #52 at 8 (citation omitted). Regardless, because the 2017 incident involves uncharged and contested conduct, to be admissible under Rule 413 the proffered evidence must also be relevant under Rule 104(b), the rule of conditional relevance. See United States v. Norris, 428 F.3d 907, 913-14 (9th Cir. 2005).[3] “When determining whether there is sufficient evidence to satisfy Rule 104(b), the court is not required to make a preliminary finding that the government has proved the conditional fact.” Id. (citing Huddleston v. United States, 485 U.S. 681, 689 (1988)). Rather, the court must examine all of the evidence and determine “whether the jury could reasonably find the conditional fact by a preponderance of the evidence.” Id.

         A prior sexual assault may be proved in many ways, including with a judgment of conviction, testimony of the victim, or the defendant's own admission. See United States v. Redlightning, 624 F.3d 1090, 1120 (9th Cir. 2010). Although the Ninth Circuit does “not suggest that the district courts may only introduce prior acts [of sexual assault] for which a defendant has been tried and found guilty, . . . the extent to which an act has been proved is a factor that district courts may consider.” LeMay, 260 F.3d at 1029. The Court “cannot be expected to conduct a ‘trial within a trial' to determine the veracity of the proffered evidence.” McMahon v. Valenzuela, No. 2:14-CV-02085-CAS(AGRx), 2015 WL 7573620, at *4 (CD. Cal. Nov. 25, 2015) (quoting Johnson v. Elk Lake School Dist, 283 F.3d 138, 152 (3d Cir. 2002)).

         Testimony from a sexual assault victim may be sufficient for a jury to find by preponderance of the evidence that an alleged prior sexual assault occurred, see Dkt. #52 at 13; Dkt. #58 at 8-9, but the cases the government relies on for this proposition are distinguishable.[4] Defendant not only points to inconsistencies in the record evidence, he emphasizes that L.S. “has not testified under oath, nor has she been subjected to questioning or cross-examination by either government or defense counsel.”[5]

         Here, where the evidence underlying the uncharged, contested 2017 sexual assault allegation is inconsistent, and the parties accounts of the incident vary drastically, the Court is unwilling to admit the evidence based solely on the testimony of L.S. Although the hotel's security guard provided some corroboration to L.S.'s account, there are sufficient gaps in the record that aspects of both parties' characterizations are plausible. Compare LeMay, 260 F.3d at 1029 (finding evidence regarding the defendant's prior abuse “highly reliable, ” in part because “it was an inference based on proven facts and [the defendant's] own admissions, not rumor, innuendo, or prior uncharged acts capable of multiple characterizations”) (emphasis added). Having examined all of the evidence underlying the 2017 allegation, the Court is not convinced that a jury could ...


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